THE USE (AND ABUSE) OF COMMON PROPERTY AND LIMITED COMMON P - PowerPoint Presentation

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THE USE (AND ABUSE) OF COMMON PROPERTY AND LIMITED COMMON PROPERTY

Presented by:Lisa Frey – Gowlings WLG (Canada) LLPJim Allison – Assertive Northwest Property Management Group Ltd. Jamie Bleay - Access Law GroupModerator: Sean Ingraham, FirstService Residential BCSlide2

Introduction

You own a piece of it You routinely enjoy using it But understanding what it can and cannot be used for, and how to approach altering it, IS important in order to avoid the “condo cops” and possibly run afoul of the courts or the CRT…Slide3
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SOME EXAMPLES TO PONDERSlide5

Some examples to ponder (pay attention - there will be a test later)!

Example # 1 – An owner constructs a pagoda on their patio. It is not affixed to anything. The owner’s neighbour complains. Slide6

NOW WHAT?Slide7

Some examples to ponder (pay attention there will be a test later)!

Example # 1 – An owner constructs a pagoda on their patio. It is not affixed to anything. The owner’s neighbour complains. Now what?Example # 2 – An owner asks for and obtains approval to install a new window. 5 years later the wall behind the window shows signs of rotting. Slide8

NOW WHAT?Slide9

Some examples to ponder (pay attention there will be a test later)!

Example # 1 – An owner constructs a pagoda on their patio. It is not affixed to anything. The owner’s neighbour complains. Now what?Example # 2 – An owner asks for and obtains approval to install a new window. 5 years later the wall behind the window shows signs of rotting. Now what?Example # 3 – An owner asks for and obtains approval to enclose a balcony. It has to be removed to allow for building envelope remediation. The owner wants the strata council to pay for the reinstallation.Slide10

NOW WHAT?Slide11

Some examples to ponder (pay attention there will be a test later)!

Example # 1 – An owner constructs a pagoda on their patio. It is not affixed to anything. The owner’s neighbour complains. Now what?Example # 2 – An owner asks for and obtains approval to install a new window. 5 years later the wall behind the window shows signs of rotting. Now what?Example # 3 – An owner asks for and obtains approval to enclose a balcony. It has to be removed to allow for building envelope remediation. The owner wants the strata council to pay for the reinstallation. Now what?Example # 4 – An owner places a hot tub on a penthouse deck. He has noisy parties and the strata council tells him the hot tub is an alteration and contrary to the bylaws. Is it?Slide12

NOW WHAT?Slide13

Some examples to ponder (pay attention there will be a test later)!

Example # 1 – An owner constructs a pagoda on their patio. It is not affixed to anything. The owner’s neighbour complains. Now what?Example # 2 – An owner asks for and obtains approval to install a new window. 5 years later the wall behind the window shows signs of rotting. Now what?Example # 3 – An owner asks for and obtains approval to enclose a balcony. It has to be removed to allow for building envelope remediation. The owner wants the strata council to pay for the reinstallation. Now what?Example # 4 – An owner places a hot tub on a penthouse deck. He has noisy parties and the strata council tells him the hot tub is an alteration and contrary to the bylaws. Is it?

Example # 5 – An owner smokes on his balcony. He tells the strata council to get lost when they tell him to stop smoking on his balcony due to complaints being received. Slide14

NOW WHAT?Slide15

Q1: How is common property and limited common property created?Slide16

The Strata Property Act

Section 1(1) – “common property” - (a) that part of the land and buildings shown on a strata plan that is not part of a strata lot, and(b) pipes, wires, cables, chutes, ducts and other facilities for the passage or provision of water, sewage, drainage, gas, oil, electricity, telephone, radio, television, garbage, heating and cooling systems, or other similar services, if they are located(i) within a floor, wall or ceiling that forms a boundary(A) between a strata lot and another strata lot,(B) between a strata lot and the common property, or

(C) between a strata lot or common property and another parcel of land, or

(ii) wholly or partially within a strata lot, if they are capable of being and intended to be used in connection with the enjoyment of another strata lot or the common property;Slide17

The Strata Property Act

Section 1(1) – “limited common property” - common property designated for the exclusive use of the owners of one or more strata lots.In Moure v. The Owners, Strata Plan NW2099, 2003 BCSC 1364, Groberman J., as he then was, said at para. 22 that [L]imited common property must be seen as a special category of property over which the unit owner has a substantial degree of control and something approaching a beneficial interest. Slide18

Examples of types of common property/limited common property

Amenity rooms;Pools/hot tubs;Patios/decks/balconies;Hallways;Stairs/stair wells;Roof tops;Elevators;

Storage lockers;

Bicycle rooms;Work shops;Back yards/front yards;Parking spaces;

Washrooms;HVAC systems;

Lobbies;Green spaces;

Hose bibs;

Windows;

Doors.

Others?Slide19

Fair enough…but specifically, how do we tell what is common property, limited common property, or part of the strata lot at

our strata corporation?Slide20

Strata PlanSlide21

Strata PlanSlide22

Strata Plan

Strata Lots?Slide23

Strata Plan

Strata Lots?Slide24

Strata Plan

Limited Common Property?Slide25

Limited Common Property?

Limited Common Property?Strata PlanSlide26

Strata Plan

But wait…Is that all the limited common property?You must go back and check the legend because sometimes labels are misleading! Slide27

Strata PlanSlide28

Strata PlanSlide29

Strata Plan

Common PropertySlide30

COMMON PROPERTY

LIMITED

COMMON

PROPERTYSlide31

Limited Common Property can also be created by resolution…Therefore it’s important to also check your strata corporation’s general index to see if one has been filed.

After Strata Plan is Deposited….Slide32

How is CP/LCP Governed?

Strata Property Act, Section 3 – Except as otherwise provided for in this Act, a Strata Corporation is responsible for managing and maintaining the common property and common assets of the Strata Corporation for the benefit of the owners.Strata Property Act, Section 26 – Subject to this Act, the regulations and the bylaws, the council must exercise and perform the duties of the strata corporation, including enforcement of the bylaws. Slide33

How is CP/LCP Governed?

Strata Property Act, Section 119 (1) The strata corporation must have bylaws.(2) The bylaws may provide for the control, management, maintenance, use and enjoyment of the strata lots, common property and common assets of the strata corporation and for the administration of the strata corporation.Slide34

How is CP/LCP Governed?

Division 1 – Schedule of Standard bylaws:Bylaw 3 – Use of property(1) An owner, tenant, occupant or visitor must not use a strata lot, the common property or common assets in a way that(a) causes a nuisance or hazard to another person,(b) causes unreasonable noise,(c) unreasonably interferes with the rights of other persons to use and enjoy the common property, common assets or another strata lot,(d) is illegal, or(e) is contrary to a purpose for which the strata lot or common property is intended as shown expressly or by necessary implication on or by the strata plan.

(2) An owner, tenant, occupant or visitor must not cause damage, other than reasonable wear and tear, to the common property, common assets or those parts of a strata lot which the strata corporation must repair and maintain under these bylaws or insure under section 149 of the Act.Slide35

How is CP/LCP Governed?

Section 119 allows any number of uses to be regulated by way of bylaws (or rules –see section 125 which statesRules125  (1) The strata corporation may make rules governing the use, safety and condition of the common property and common assets.(2) A rule is not enforceable to the same extent that a bylaw is not enforceable under section 121 (1).(3) All rules, including those posted on signs, must be set out in a written document that is capable of being photocopied.(4) The strata corporation must inform owners and tenants of any new rules as soon as feasible.(5) If a rule conflicts with a bylaw of the strata corporation, the bylaw prevails.

(6) A rule ceases to have effect at the first annual general meeting held after it is made, unless the rule is ratified by a resolution passed by a majority vote

(a) at that annual general meeting, or(b) at a special general meeting held before that annual general meeting.(7) Once a rule has been ratified under subsection (6), it is effective until it is repealed, replaced or altered, without the need for further ratification.Slide36

How is CP/LCP Governed?

Bylaw 5 – Obtain approval before altering a strata lot(1) An owner must obtain the written approval of the strata corporation before making an alteration to a strata lot that involves any of the following:(a) the structure of a building;(b) the exterior of a building;(c) chimneys, stairs, balconies or other things attached to the exterior of a building;(d) doors, windows or skylights on the exterior of a building, or that front on the common property;(e) fences, railings or similar structures that enclose a patio, balcony or yard;(f) common property located within the boundaries of a strata lot;

(g) those parts of the strata lot which the strata corporation must insure under section 149 of the Act.

(2) The strata corporation must not unreasonably withhold its approval under subsection (1), but may require as a condition of its approval that the owner agree, in writing, to take responsibility for any expenses relating to the alteration.Slide37

How is CP/LCP Governed?

Bylaw 6 - Obtain approval before altering common property6  (1) An owner must obtain the written approval of the strata corporation before making an alteration to common property, including limited common property, or common assets.(2) The strata corporation may require as a condition of its approval that the owner agree, in writing, to take responsibility for any expenses relating to the alteration.Slide38
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How is CP/LCP Governed?

An owner, tenant or occupant must not:use a strata lot for any purpose which involves undue traffic or noise in or about the strata lot or common property between the hours of 10:30 p.m. and 8:00 a.m. or that encourages loitering by persons in or about the strata lot or common property;make

, cause or produce undue noise, smell, vibration or glare in

or about any strata lot or common property or do anything which will interfere unreasonably with any other owner, tenant

or occupant; use any musical instrument, amplifier, sound reproduction

equipment or other device within or about any strata lot, the common property or any limited common property such that it causes a disturbance or interferes with the comfort of any other owner, tenant or occupant; Slide40

An owner, tenant or occupant must not:use a barbecue, hibachi or other like cooking device on a

balcony, deck or patio unless such barbecue, hibachi or cooking device is powered by propane, natural gas or electricity;shake any mops or dusters of any kind, nor throw any refuse, out of the windows or doors or from the balcony of a strata lot;

do anything that will increase the risk of fire or the rate of

insurance on the building or any part thereof;permit a condition to exist within a strata lot which will result

in the waste or excessive consumption of the building’s domestic water supply

or heated water; [….]

How is CP/LCP Governed?Slide41

feed pigeons, gulls or other birds, squirrels, rodents or other animals from a strata lot or anywhere on

or in close proximity to the common property or any limited common property, but this shall not apply to a pet permitted to be kept in a strata lot pursuant to these bylaws and the rules made hereunder, which pet shall be fed only in a strata lot; install any window coverings, visible from the exterior of his strata lot, which are different in size or colour from those of the original building specifications; hang or display any laundry, washing, clothing, bedding or other articles from windows, balconies or other parts of the building so that they are visible from the outside of the building;

 use

or install in or about a strata lot any shades, awnings, window or balcony guards or screens, ventilators, supplementary heating or air conditioning devices, except those installations approved in writing by the council;

 erect on or fasten to the strata lot, the common property or any limited common property any television or radio antenna or similar structure or appurtenance thereto

;place any signs, billboards, notices or other advertising matter of any kind on, or visible from, the exterior of

a strata lot;

place

any indoor-outdoor carpeting on any deck, patio or balcony, or place any items on any deck, patio

or

the balcony except free-standing, self-contained planter boxes, barbecues, summer furniture and

accessories

nor install any hanging plants or baskets or other hanging items within three feet of a balcony

railing

line; hanging plants or baskets or other hanging items within three feet of a balcony railing line

How is CP/LCP Governed?Slide42

Let’s not forget:Parking use bylaws;

Storage locker use bylaws;Pet “use” bylaws;Smoking bylaws;Charging station install/use bylawsWhen looking at the types of uses (and abuses) of common property and limited common property.Other examples?How is CP/LCP Governed?Slide43

Strata Council

Dealing with:Alteration requests;Alterations without approvalBylaw enforcement Practical considerations Balancing actSlide44

Q2: How is common property and limited common property

altered or its use changed

?Slide45

Approvals and Alteration Agreements

what should be contained in an alteration agreement? what factors should be considered by the council when deciding whether or not to approve a particular alteration or proposalSlide46

Q3: When has this gone

wrong

?Slide47

Cautionary Tales…

what are some cases where alterations have gone

amoc

? Slide48

Q4: What could have been done differently?Slide49

Cautionary Tales…

what are some cases where alterations have gone

amoc

? …. and

what could

have prevented the problem?Slide50

Q5: When have things gone right?Slide51

It’s not ALL bad news…

what are some situations in which

alternations to common property/limited common property went

well

?

why were

these efforts so successful?Slide52

NOW BACK TO OUR EXAMPLES…Slide53

Some examples to ponder (now it’s time for the test)!

Example # 1 – An owner constructs a pagoda on their patio. It is not affixed to anything. The owner’s neighbour complains. Slide54

Some examples to ponder (now it’s time for the test)!

Example # 2 – An owner asks for and obtains approval to install a new window. 5 years later the wall behind the window shows signs of rotting. Slide55

Some examples to ponder (now it’s time for the test)!

Example # 3 – An owner asks for and obtains approval to enclose a balcony. It has to be removed to allow for building envelope remediation. The owner wants the strata council to pay for the reinstallation.Slide56

Some examples to ponder (now it’s time for the test)!

Example # 4 – An owner places a hot tub on a penthouse deck. He has noisy parties and the strata council tells him the hot tub is an alteration and contrary to the bylaws. Is it?Slide57

Some examples to ponder (now it’s time for the test)!

Example # 5 – An owner smokes on his balcony. He tells the strata council to get lost when they tell him to stop smoking on his balcony due to complaints being received. Slide58

QUESTIONS AND COMMENTS?